Absentee ballot rule tossed

Judge: If they're not returned, provisional ones can be cast

By Gabrielle Crist, Rocky Mountain News
October 19, 2004

Any voter who requests an absentee ballot but fails to fill it out will be allowed to cast a provisional ballot at the polls, a Denver District judge ruled Monday.

The ruling will allow tens of thousands of voters to cast a ballot who wouldn't have been able to under Secretary of State Donetta Davidson's rules. 
"That is going to have a major impact on this election," said Pete Maysmith, executive director of Colorado Common Cause, the government watchdog group that sued the state over three voting rules - including the absentee ballot rule - in September. "This is a terrific victory."

The nonpartisan voting-rights group FairVoteColorado.org also applauded the ruling.

"Some people don't receive their absentee ballots, or they are lost or destroyed. This ruling ensures that those people will be able to cast a ballot and their vote will count," said Mark Eddy, FairVoteColorado.org spokesman.

But while Common Cause won on one count, Davidson won on two others.

Denver District Judge Morris Hoffman ruled in her favor by upholding a state law requiring voters to present identification when they vote at the polls.

He also upheld a state voting guideline that prohibits anyone who votes in the wrong precinct from voting in anything but the presidential election.

"This decision clearly supports our belief that identification at the polling place and precinct requirements help ensure the integrity of Colorado's election process . . . ," Davidson said in a news release.

Gov. Bill Owens also applauded the ruling and in a news release said it will "help ensure the integrity of next month's elections."

In his ruling, Hoffman said the state's guideline prohibiting voters who requested an absentee ballot from casting a provisional ballot violated the federal Help America Vote Act.

The federal voting act, which went into effect in 2002, was designed, in part, to prevent eligible voters from being turned away from the polls because their names had been erroneously left off voter registration logs.

The act requires states to provide provisional ballots to ensure that all legitimate voters have the chance to cast a ballot.

Provisional ballots are cast at the polls, but they are separated so election officials can go back and double-check that the persons who cast them were in fact eligible to vote.

In Colorado, provisional ballots are used if people vote in the wrong precinct, if they failed to bring identification, or if they believe they registered to vote but election officials have no record of it.

"Congress made no exception for voters who had previously requested or even received absentee ballots," Hoffman ruled.

In 2002, the first time Colorado used provisional ballots, about half of the 27,366 ballots cast were from voters who requested absentee ballots but didn't return them.

The legislature subsequently d the portion of the law that allowed absentee applicants to request provisionals, a move many county clerks supported.

Davidson has said clerks were concerned that too many people would try to vote both an absentee and a provisional ballot.

However, in 2002, only 85 people cast two ballots, and all of those were caught before election results were tabulated, according to Davidson's office.

But Hoffman rejected claims by Common Cause attorneys who argued that it is unconstitutional to require all voters to present identification at the polls. Common Cause contended that several groups - students, the poor, the homeless - don't always have identification and would be disenfranchised.

Hoffman said people these days are accustomed to carrying identification with them. Asking them for it at the polls will help reduce voter fraud, he ruled.

"The state has a legitimate, indeed compelling, interest in doing what it can to make sure that last month's fraudulent or no-longer-eligible registrant does not become next month's fraudulent voter," Hoffman ruled.

Hoffman also was not swayed by Colorado Common Cause arguments that people who vote in the wrong precinct should be allowed to vote in all statewide races, instead of just the presidential race.

Jefferson County Clerk and Recorder Faye Griffin said she didn't agree with Hoffman on that aspect of his ruling. If she has to open a provisional ballot to count the vote for the presidential election, she might as well count all the races the voter is eligible to vote in, she said.

If that rule stays in place, Griffin said, it's likely lawsuits will be filed after the election.

Any appeals to Hoffman's rulings must be filed within three days.

Voting rules

What Denver District Judge Morris Hoffman ruled:

• Absentee ballots: Voters who request absentee ballots but don't fill them out can cast provisional ballots at the polls. The ruling noted the state's guidelines violated the federal Help America Vote Act, which went into effect in 2002.

• Identification: Voters must show proper identification at the polls.

• Precincts: Voters who cast ballots in the wrong precinct are only allowed to vote in the presidential race.